Opinion
No. 654179/2013.
01-15-2015
INTERNATIONAL PUBLISHING CONCEPTS, LLC, Plaintiff, v. Thierry LOCATELLI, individually and doing business under the name and style of Prestige and/or Prestige–Worldwide, Defendant. Thierry Locatelli, individually and doing business under the name and style of Prestige and/or Prestige–Worldwide, Counterclaim Plaintiff, v. International Publishing Concepts, LLC, Counterclaim Defendant. Thierry Locatelli, Third–Party Plaintiff, v. Renaud Vertalier, Third–Party Defendant.
Plaintiff International Publishing Concepts, LLC (“IPC”) and Third–Party Defendant Renaud Vertalier (“Vertalier”) is represented by Zachary A. Kozak of Frey & Kozak LLP. Defendant and Third–Party Plaintiff Thierry Locatelli (“Locatelli”) are represented by Usher Winslett of Winslett Studnicky McCormick & Bomser LLP.
Plaintiff International Publishing Concepts, LLC (“IPC”) and Third–Party Defendant Renaud Vertalier (“Vertalier”) is represented by Zachary A. Kozak of Frey & Kozak LLP.
Defendant and Third–Party Plaintiff Thierry Locatelli (“Locatelli”) are represented by Usher Winslett of Winslett Studnicky McCormick & Bomser LLP.
Opinion
EILEEN BRANSTEN, J.
Before the Court is Plaintiff and Counterclaim Defendant International Publishing Concepts, LLC's (“IPC”) and Third–Party Defendant Renaud Vertalier's (“Vertalier”) motion to dismiss Defendant, Counterclaim Plaintiff, and Third–Party Plaintiff Thierry Locatelli's (“Locatelli”) counterclaim and third-party claim for defamation against IPC and Vertalier respectively, and striking certain paragraphs from Locatelli's Counterclaims and Third–Party Complaint which allege the involvement of IPC and Vertalier's current and former attorneys who are not parties to this action. Locatelli opposes. For the reasons that follow, the motion is granted in all respects except that IPC and Vertalier's request for an award of costs and fees is denied as no basis for such relief has been identified.
Locatelli's Counterclaims and Third–Party Complaint are contained in a single document along with Locatelli's Answer to the Complaint.
BACKGROUND
This action arises out of a business dispute between IPC and its former salesperson, Locatelli. IPC is a Delaware LLC authorized to do business in New York State that publishes books and magazines for placement in hotels. IPC's publications include a variety of content and are provided at no cost to a number of different hotels and hotel chains. Instead, IPC generates its revenue by selling advertising space in the publications, focusing generally on advertisements for luxury goods and services, which are presumably of interest to the guests of these hotels. Vertalier is the president and CEO of IPC.
Locatelli was retained as IPC's sales representative in May 2007. In that role he sold advertising space in IPC's publications and developed relationships with hotels in which those publications would be made available to guests. Through April 2012, Locatelli generated significant revenue for IPC, selling as much as $2 million in advertising space in a single year.
In May 2012, Locatelli allegedly began to compete with IPC's business, using the names Prestige and Prestige–Worldwide. That year, IPC's sales in the United States, where Locatelli focused his selling, began to decline sharply. From that time until June 2013, IPC contends that Locatelli used materials similar to IPC's in order to mislead IPC's clients to advertise in publications offered by Locatelli instead of those offered by IPC. IPC thereafter commenced this action in December 2013, asserting claims for breach of fiduciary duty, fraud, unjust enrichment, tortious interference with prospective and existing economic relations, unfair competition, and theft of corporate opportunity.
Subsequent to the commencement of this action, Locatelli filed an answer asserting counterclaims against IPC for defamation and tortious interference with business relations, alleging that IPC forwarded several disparaging emails and letters to at least two of Locatelli's hotel clients, causing Locatelli to lose their business and damaging his reputation with his customers. In addition, Locatelli asserts a third-party claim against Vertalier for defamation, which is based upon the same series of letters and emails.
The letters, which are dated August 1 and 6, 2013, were written by Zachary A. Kozak (“Kozak”) of Frey & Kozak LLP, Vertalier and IPC's counsel in this action. The August 1st letter is addressed to Vertalier and explains the results of the firm's analysis, describing the legal claims which the firm believes Vertalier and IPC may have against Locatelli and Prestige. The August 1st letter also includes the firm's recommendations as to the avenues of relief that Vertalier and IPC should pursue. The August 1st letter was sent as an attachment to an August 2nd email from attorney David Katz (IPC's former counsel), which summarily restates the contents of the August 1st letter.
The August 6th letter is addressed to Locatelli and an individual named Walter Sadorge and begins with the subject line, “CEASE AND DESIST.” This letter, which was also written and sent by Kozak, outlines the legal claims which Vertalier and IPC have against Locatelli and Sadorge, and demands that the recipients cease their purportedly violative conduct.
According to Locatelli, these letters and the August 2nd email were forwarded by Vertalier to Megan Sterritt and Dan Normandin of the Four Seasons Hotels and to Andrea Gates, Tracy Fitz, Giovanni Beretta, and Jennifer Cookecertain of Rosewood Hotels and Resorts LLC, none of whom are parties to this action. In the forwarding emails, Vertalier states that he is bringing a legal action against Locatelli and Prestige, and refers the recipients to the attached letters for further details. At bottom, it is Vertalier and IPC's transmission of the letters and the August 2nd email to the employees of two nonparty hotels with which Locatelli was doing business, which forms the basis of Locatelli's defamation claims.
ANALYSIS
I. IPC and Vertalier's Motion to Dismiss
A.The Standards Applicable to a Motion to Dismiss Under CPLR 3211(a)(1) and (a)(7)
“On a motion to dismiss pursuant to CPLR 3211, the pleading is to be afforded a liberal construction. We accept the facts as alleged in the complaint as true, accord plaintiffs the benefit of every possible favorable inference, and determine only whether the facts as alleged fit within any cognizable legal theory.” Leon v.. Martinez, 84 N.Y.2d 83, 87–88 (1994). In addition, “[a] plaintiff may provide, and the court can consider, sworn affidavits to remedy any defects in the complaint and preserve a possibly inartful pleading that may contain a potentially meritorious claim.” Ray v. Ray, 108 AD3d 449, 452 (1st Dep't 2013).
A motion to dismiss under CPLR 3211(a)(7), for failure to state a cause of action, must be denied if the factual allegations contained within “the pleadings' four corners ... manifest any cause of action cognizable at law.” 511 W. 232nd Owners Corp. v. Jennifer Realty Co., 98 N.Y.2d 144, 151–52 (2002). While factual allegations contained in a complaint should be accorded a favorable inference, bare legal conclusions and inherently incredible facts are not entitled to preferential consideration. Sud v. Sud, 211 A.D.2d 423, 424 (1st Dep't 1995).
Where the motion to dismiss is based on documentary evidence under CPLR 3211(a)(1), the claim will be dismissed “if the documentary evidence submitted conclusively establishes a defense to the asserted claims as a matter of law.” Leon, 84 N.Y.2d at 88 ; see 150 Broadway N.Y. Assocs., L.P. v. Bodner, 14 AD3d 1, 5 (1st Dep't 2004).
B.The Elements of a Defamation Claim Under New York Law
Defamation is generally described as “the making of a false statement about a person that tends to expose the plaintiff to public contempt, ridicule, aversion or disgrace, or induce an evil opinion of him [or her] in the minds of right-thinking persons, and to deprive him [or her] of their friendly intercourse in society.” Frechtman v. Gutterman, 115 AD3d 102, 104 (1st Dep't 2014) (alteration in original).
Under New York law, the elements of a defamation claim are “[1] a false statement, [2] published without privilege or authorization to a third party, [3] constituting fault as judged by, at a minimum, a negligence standard, and [4] it must either cause special harm or constitute defamation per se.' “ Frechtman, 115 AD3d at 104. Notable here is the fact that “[a] statement is defamatory on its face when it suggests improper performance of one's professional duties or unprofessional conduct.” Frechtman, 115 AD3d at 104.
Plaintiff and Third–Party Defendant have raised three arguments in favor of dismissal of Locatelli's defamation claims. First, the statements are protected by “absolute privilege” and therefore cannot form the basis of a defamation claim. Second, the statements are protected by “qualified privilege,” which also mandates dismissal. Third, the statements are nonactionable statements of opinion, rather than actionable assertions of fact.
C.Whether the Statements at Issue Are Protected by Absolute Privilege
According to the First Department, “[a]n absolute privilege applies when the challenged communication was made by an individual participating in a public function, such as ... judicial or quasi-judicial proceedings.” Frechtman, 115 AD3d at 106. “[I]n the context of a legal proceeding, statements [made] by parties and their attorneys are absolutely privileged if, by any view or under any circumstances, they are pertinent to the litigation.' ... [This privilege] embrac[es] letters between litigating parties and their attorneys, relating to litigation.” Frechtman, 115 AD3d at 106–07.
Such a privilege applies to statements made with respect to both “pending or contemplated litigation,” Caplan v. Winslett, 218 A.D.2d 148, 153 (1st Dep't 1996), and “is extended to all pertinent communications among the parties, counsel, witnesses, and the court.” Frechtman, 115 AD3d at 107. It applies equally “[w]hether a statement was made in or out of court, was on or off the record, or was made orally or in writing.” Frechtman, 115 AD3d at 107. In this case, though no litigation had been commenced at the time that the statements were made, there is no question that absolute privilege can exist even as to statements made with respect to pending or contemplated litigation. See Caplan, 218 A.D.2d at 153.
Furthermore, the statements also appear to be “pertinent” and “relat[ed] to” the contemplated litigation. Indeed, the First Department prescribes a fairly broad and encompassing standard for determining whether absolute privilege exists:
Although the privilege will not protect gratuitous statements uttered wholly “outside the cause,” we have long been guided by the rule that “no strained or close construction will be indulged in to exempt a case from the protection of privilege.” As long as the subject of an out-of-court communication relates to pending or contemplated litigation, and is made in connection with a judicial proceeding, it furthers an interest of social importance and should be protected.
Caplan, 218 A.D.2d at 153 (quoting Moore v. Mfrs.' Nat'l Bank, 123 N.Y. 420, 426 (1890) ).
Here, the emails and attached letters were sent to advise two nonparties—Four Seasons Hotels and Rosewood Hotels and Resorts LLC—of the likelihood of impending litigation against Locatelli and, in particular, of Vertalier's intention to enjoin Locatelli from fulfilling contracts with IPC's current or former clients (including the nonparty hotels). While such an injunction has not yet been sought, that fact should not be outcome-determinative. Rather, it appears to have been intended at the time that these letters and emails were written that such an injunction would be sought, and, if obtained, would affect not only Locatelli, but also these nonparty hotels by preventing Locatelli from performing his obligations under their contract.
In addition, the First Department has held that, where applicable, absolute privilege “is extended to all pertinent communications among the parties, counsel, witnesses, and the court.” Frechtman, 115 AD3d at 107. Although it does not yet appear that these nonparty hotels have been subpoenaed as witnesses in this action, the emails and letters can reasonably be read as putting them on notice of the fact that, in light of the contemplated litigation, subpoenas might be forthcoming.
Based on the foregoing, the Court finds that the statements in question are protected by absolute privilege.
D.Whether the Statements at Issue Are Protected by Qualified Privilege
In Frechtman v. Gutterman, 115 AD3d 102 (1st Dep't 2014), the First Department concluded that “[e]ven if the absolute privilege were inapplicable, the statements contained in defendants' letters would be subject to a qualified privilege as communications upon a subject matter in which both parties had an interest.” Frechtman, 115 AD3d at 107. The same is true in this case.
For a qualified privilege to exist, the parties to the communication must have an interest in the subject matter of the communication. See Frechtman, 115 AD3d at 107. Stated another way, “[a] communication made bona fide upon any subject matter in which the party communicating has an interest ... is privileged if made to a person having a corresponding interest ..., although it contained criminating matter which, without this privilege, would be slanderous and actionable.” Shapiro v. Health Ins. Plan of Greater New York, 7 N.Y.2d 56, 60 (1959) (internal quotation marks omitted).
In addition, “[t]he statement must have been made with a proper purpose, and publication must be in a proper manner and to proper parties only.” Frechtman, 115 AD3d at 108. Lastly, “[t]he shield provided by a qualified privilege may be dissolved if plaintiff can demonstrate that defendant [made the statement] with malice, which may mean either spite or ill will, or knowledge that the statement was false or made in reckless disregard of its truth or falsity.” Frechtman, 115 AD3d at 107–08 (internal quotation marks omitted).
Here, both the communicating party (Vertalier) and the recipient of the communications (Four Seasons Hotels and Rosewood Hotels and Resorts LLC) shared a common interest in the subject of the communication. Specifically, Vertalier expressed his intention to commence a lawsuit against Locatelli and, in doing so, to seek injunctive relief. Because the intended injunction, if granted, would have affected Locatelli's ability to perform contracts entered into with these nonparty hotels, the requirement of a common interest in the subject of the communication is met.
The purpose of the communication, as well as the propriety of the manner and parties to whom the communication was sent, also militates in favor of qualified privilege. The purpose was to apprise these nonparty hotels of the fact that performance of their contracts might be impacted, as well as to put them on notice of contemplated litigation in which it is likely that they would be subpoenaed as witnesses. The recipients were employees of each nonparty hotel. The communications were sent via email to these specific employees, rather than, for example, being published or otherwise made viewable by a wider audience.
Finally, there is nothing in the record to suggest that the emails and letters were sent with malice, meaning spite or ill will, nor is there anything to indicate Vertalier's knowledge of the statements' falsity or a reckless disregard of their truth or falsity. Rather, the emails written by Vertalier are quite brief, and in substance refer the recipients to the attached letters. The letters, in turn, contain the legal opinions and accusations of Vertalier's and IPC's attorneys.
Accordingly, the Court finds that the statements in question are protected by qualified privilege.
E.Whether the Statements at Issue Are Opinion or Assertions of Fact
New York courts consider three factors in determining whether “challenged statements are nonactionable opinion or assertions of fact.” Frechtman, 115 AD3d at 105. “[T]he factors to be considered are: (1) whether the specific language in issue has a precise meaning which is readily understood; (2) whether the statements are capable of being proven true or false; and (3) whether either the full context of the communication in which the statement appears or the broader social context and surrounding circumstances are such as to signal ... readers or listeners that what is being read or heard is likely to be opinion, not fact.” Frechtman, 115 AD3d at 105 (citations and internal quotation marks omitted). In undertaking this analysis, a court must determine whether “a reasonable reader would understand the statements” to be opinion or fact. Brian v. Richardson, 87 N.Y.2d 46, 53 (1995).
The First Department has also stated that “[i]t is most important to look at the content of the whole communication, its tone and apparent purpose, rather than first examining the challenged statements for express and implied factual assertions, and finding them actionable unless couched in loose, figurative or hyperbolic language in charged circumstances.” Frechtman, 115 AD3d at 106 (citation and internal quotation marks omitted).
As discussed above, Vertalier forwarded two letters and an email to several employees of two nonparty hotels. The August 1st letter is a so-called “opinion letter from Frey & Kozak LLP” to Vertalier, describing what that firm believed his legal claims were against Locatelli. (Affirmation of Zachary A. Kozak (“Kozak Affirm.”) ¶ 3.) The August 6th letter is a “cease-and-desist letter sent by Frey & Kozak to Locatelli and his partner Walter Sadorge.” (Kozak Affirm. ¶ 5.) The August 2nd email was from “David Katz to Renaud Vertalier” and summarized the contents of the August 1st letter. (Kozak Affirm. ¶ 4.) In each of the forwarding emails which Vertalier wrote and which accompanied the forwarded documents, Vertalier briefly references a pending legal action against Locatelli and refers the recipients to the forwarded documents for more information. The transmission of these letters and email to the employees of the nonparty hotels forms the basis of Locatelli's defamation claims.
At the outset, it is clear that Vertalier's own statements in the emails which he wrote when forwarding the letters and the August 2nd email are not in and of themselves defamatory. The vague references to “immediate” litigation do not rise to the level of exposing the subjects (Locatelli and Prestige) to ridicule sufficient to support such a claim, nor are they necessarily even false.
Vertalier's emails coupled with David Katz's August 2nd email and the August 1st and 6th letters do not rise to the level of actionable statements of fact, but rather amount to mere statements of opinion. When considered in the “full context” and the “surrounding circumstances,” a reasonable reader would conclude that the letters and August 2nd email evince the beliefs and opinions of Vertalier and IPC's lawyers, rather than statements of fact. Cf. Brian, 87 N.Y.2d at 53 (concluding that “[a]t the outset of the article, defendant disclosed that he had been Inslaw's attorney, thereby signaling that he was not a disinterested observer” rendering the statements more like opinion than fact). Vertalier's attorneys recommend that he take legal action and that Locatelli and Prestige cease their purportedly violative conduct on the basis of those beliefs and opinions.
The communications and forwarded documents also do not constitute a so-called “mixed opinion.” The First Department has explained that “words that sound like an opinion may be actionable where the statement implies that it is based upon facts which justify the opinion but are unknown to those reading or hearing it.” Frechtman, 115 AD3d at 105 (internal quotation marks omitted). Indeed, “[t]he actionable element of a mixed opinion' is not the false opinion itself—it is the implication that the speaker knows certain facts, unknown to his audience, which support his opinion and are detrimental to the person about whom he is speaking.” Frechtman, 115 AD3d at 105–06 (citation and internal quotation marks omitted).
However, even statements which might otherwise form the basis of a defamation claim “may assume the character of statements of opinion,” making them non-actionable, “when made in public debate, heated labor dispute, or other circumstances in which an audience may anticipate [the use] of epithets, fiery rhetoric or hyperbole.” Frechtman, 115 AD3d at 106 (internal quotation marks omitted). Likewise, a letter from an attorney to a client or a letter from that same attorney to a person who the attorney has concluded violated his client's legal rights, would doubtless contain the same type of one-sided, opinionated rhetoric, which would cause the statements contained therein to assume the character of opinion.
In Frechtman, a letter sent by a client to an attorney terminating the representation included statements that the attorney had inadequately represented the client's interest, referenced a variety of mistakes, and characterized the conduct as “misconduct, malpractice, and negligence.” Frechtman, 115 AD3d at 103–04. Nevertheless, the court concluded that “[w]hile the use of words such as misconduct' and malpractice' may, viewed in isolation, seem to be assertions of provable fact, or claims supported by unstated facts, viewed in their context, these statements amount to the opinions and beliefs of dissatisfied clients about their attorney's work.” Frechtman, 115 AD3d at 106. Like the letter sent in Frechtman, the forwarded letters and the August 2nd email contain the allegations and accusations of Vertalier and IPC's lawyers who are clearly not disinterested observers. As such, their statements similarly amount to nonactionable opinions or beliefs.
Accordingly, the Court finds that a reasonable reader would conclude that the letters and emails sent to the nonparty hotels contain nonactionable statements of opinion, rather than actionable factual assertions. For all of the reasons stated above, Locatelli's counterclaim and third-party claim for defamation are dismissed with prejudice.
II. Whether the Paragraphs Identified in the Answer, Counterclaims, and Third–Party Complaint Should Be Stricken
Vertalier and IPC also request that paragraphs 6–8, 34, and 39–40 of the Counterclaims and Third–Party Complaint be stricken. Paragraph 6 states that IPC and Vertalier defamed Locatelli and interfered with his business, “with the assistance of Frey & Kozak LLP (Frey') and David Katz (Katz').” (Defendant Locatelli's Counterclaims and Third–Party Complaint (“Counterclaims and Third–Party Compl.”) ¶ 6.) Paragraph 7 states that Locatelli's attorney sent a “cease and desist” letter to Frey & Kozak LLP, “demanding that Vertalier, Frey, Katz and IPC” stop defaming Locatelli and interfering with his business. (Counterclaims and Third–Party Compl. ¶ 7.) Paragraph 8 states that “Frey commenced this action on IPC's behalf to deflect attention from the wrongdoing of Vertalier, Frey, Katz, and IPC and as a part of their scheme to disparage and defame Locatelli and his business and to intentionally interfere with and destroy that business.” (Counterclaims and Third–Party Compl. ¶ 8.)
Paragraph 34 describes IPC and Vertalier's “scheme,” wherein they “act [ed] in conjunction with Frey and Katz” in order to transmit defamatory statements to Locatelli's clients. (Counterclaims and Third–Party Compl. ¶ 34.) Paragraph 39 states that “Katz and Zachary Kozak (Kozak') of the Frey firm participated in drafting the above statements,” meaning the statements transmitted to the employees of the nonparty hotels, which Locatelli contends are defamatory. (Counterclaims and Third–Party Compl. ¶ 39.) Paragraph 40 states that “Katz and/or Kozak were copied on the publication and distributions of at least some the above statements,” making reference to the same series of allegedly defamatory statements. (Counterclaims and Third–Party Compl. ¶ 40 .)
Under CPLR 3024(b), “[a] party may move to strike any scandalous or prejudicial matter unnecessarily inserted in a pleading.” The First Department has explained that “[i]n reviewing a motion pursuant to CPLR 3024(b), the inquiry is whether the purportedly scandalous or prejudicial allegations are relevant to a cause of action.” Soumayah v. Minnelli, 41 AD3d 390, 392 (1st Dep't 2007). That is, “if the item would be admissible at the trial under the evidentiary rules of relevancy, its inclusion in the pleading, whether or not it constitutes ideal pleading, would not justify a motion to strike under CPLR 3024(b).” Soumayah, 41 AD3d at 393. Therefore the inquiry is two-fold: first, whether the matter is “scandalous or prejudicial,” and second, whether the matter is “unnecessary,” meaning irrelevant.
Evidence is considered relevant “if it has any tendency in reason to prove the existence of any material fact, i.e., it makes determination of the action more probable or less probable than it would be without the evidence.' “ Oppenheim v. MoJo–Stumer Assoc. Architects, P.C., 2013 N.Y. Slip Op. 33439(U), at *17 (Sup.Ct. N.Y. Cnty. Nov. 25, 2013) (quoting People v. Scarola, 71 N.Y.2d 769, 777 (1988) ).
The elements of Locatelli's remaining counterclaim for tortious interference with business relations are “(1) business relations with a third-party; (2) defendants' interference with those relations; (3) defendant acting with the sole purpose of harming plaintiff or using wrongful means; and (4) injury to the business relationship.” JTRE, LLC v. Bread & Butter, 2014 N.Y. Slip Op. 31488(U), at *17 (Sup.Ct. N.Y. Cnty. June 6, 2014). Locatelli claims that Vertalier sent the emails and letters to the nonparty hotels in order to interfere with Locatelli and/or Prestige's business with those hotels and, as a result, caused damages to Locatelli and Prestige of no less than $1.4 million.
Notably, Vertalier and IPC's current and former attorneys are not parties in this action. Because they are not parties to this action, their alleged “assistance” seems entirely irrelevant. The same can be said of the fact that these attorneys drafted the August 2nd email and August 1st and 6th letters which Vertalier is alleged to have forwarded to the nonparty hotels. While the identity of the drafters was clearly relevant to the now-defunct defamation claims, that fact's bearing on the remaining the counterclaim against IPC for tortious interference with business relations is not at all clear. Along the same lines, the fact that they were copied on Vertalier's emails to the nonparty hotels is also immaterial.
In the absence of any clear relevancy, the inquiry shifts to whether the paragraphs are “scandalous or prejudicial.” On the basis of the parties' submissions, there appears to be no other purpose for the allegations in these paragraphs related to IPC and Vertalier's attorneys than to implicate them in IPC and Vertalier's alleged wrongdoing without going so far as to assert claims against them. Without more, Locatelli's contentions that these attorneys were somehow involved in IPC's alleged tortious interference seem to be merely a form of disparagement. Of particular concern to the Court is that should this case go to trial, the allegations of these attorneys' involvement might “instill undue prejudice in the jury.” Soumayah, 41 AD3d at 393. For these reasons, the Court finds that these paragraphs, as presently written, are both scandalous and prejudicial.
Moreover, to the extent that the allegations were intended (as Vertalier and IPC suggest) to preserve some means of disqualifying Frey & Kozak LLP from representing Vertalier and IPC in this litigation, their inclusion in the pleadings for that purpose is inappropriate. Indeed, the inquiry into whether disqualification is warranted is evidentiary and is not based on the sufficiency of the pleadings. See Applehead Pictures LLC v. Perelman, 55 AD3d 348, 348 (1st Dep't 2008). While it might also be argued that the lack of a relation to any question of disqualification militates against a finding of prejudice, it primarily serves to emphasize the fact that these paragraphs, as they relate to IPC and Vertalier's attorneys, serve no legitimate purpose.
For the reasons stated above, paragraphs 6–8, 34, 39 and 40 of Locatelli's Counterclaims and Third–Party Complaint are stricken. Locatelli is directed to file and serve an amended answer and counterclaim within 20 days after service of a copy of this order with notice of entry. Locatelli is free to revise paragraphs 6–8 or 34 by omitting all references to IPC and Vertalier's attorneys, David Katz, Zachary Kozak, or Frey & Kozak LLP, since those paragraphs also contain allegations unrelated to those attorneys.
CONCLUSION
Accordingly, it is hereby
ORDERED that Defendant Locatelli's first counterclaim for defamation against IPC is dismissed with prejudice; and it is further
ORDERED that Defendant Locatelli's third-party claim for defamation against Vertalier is dismissed with prejudice and the Third–Party Complaint is dismissed in its entirety; and it is further
ORDERED that paragraphs 6–8, 34, 39 and 40 of Defendant Locatelli's Counterclaims and Third–Party Complaint are stricken; and it is further
ORDERED that the caption in this action is amended to reflect the dismissal of the Third–Party Complaint; and it is further
ORDERED that the action shall bear the following caption:
INTERNATIONAL PUBLISHING CONCEPTS, LLC, Index No.: 654179/2013 Plaintiff,
-against
THIERRY LOCATELLI, individually and doing business under the name and style of PRESTIGE and/or PRESTIGE–WORLDWIDE, Defendant.
THIERRY LOCATELLI, individually and doing business under the name and style of PRESTIGE and/or PRESTIGE–WORLDWIDE, Counterclaim Plaintiff,
-against
INTERNATIONAL PUBLISHING CONCEPTS, LLC, Counterclaim Defendant.
and it is further
ORDERED that within 10 days from the date of this order, Plaintiff IPC shall electronically file and serve a copy of this order with notice of entry upon the County Clerk (Room 141B), the Clerk of the Trial Support Office (Room 158) and the Clerk of the E-filing Support Office (Room 119), who are directed to mark the Court's records to reflect the amended caption; and it is further
ORDERED that Defendant Locatelli shall serve an amended answer and counterclaim within 20 days after service of a copy of this order with notice of entry; and it is further
ORDERED that counsel are directed to appear for a preliminary conference in Room 442, 60 Centre Street, on Tuesday, February 17, 2015, at 10:00 A.M.
This constitutes the decision and order of the Court.